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Obscenity and the Reasonable Person: Will He "Know It When He Sees It"? Eric Jaeger

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Obscenity and the Reasonable Person: Will He Boston College Law Review Volume 30 Article 2 Issue 3 Number 3 5-1-1989 Obscenity and the Reasonable Person: Will He "Know It When He Sees It"? Eric Jaeger Follow this and additional works at: http://lawdigitalcommons.bc.edu/bclr Part of the First Amendment Commons Recommended Citation Eric Jaeger, Obscenity and the Reasonable Person: Will He "Know It When He Sees It"?, 30 B.C.L. Rev. 823 (1989), http://lawdigitalcommons.bc.edu/bclr/vol30/iss3/2 This Notes is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. NOTES OBSCENITY AND THE REASONABLE PERSON: WILL HE "KNOW IT WHEN HE SEES IT?"' Society's appetite for sexually oriented works, from Sports Il- lustrated's swimsuit issue 2 to the burgeoning market in porno- graphic home videos," continues unabated. So too does the battle over whether such works have a legitimate place in a civilized society. This battle pits religious, feminist, and other organizations, as well as state and federal governments, against those who create, distrib- ute and view sexually oriented works.' Private organizations have exerted pressure publicly, in the form of boycotts and publicity campaigns,5 and have lobbied state and federal governments to take action to halt the dissemination of works that portray nudity or ' Referring to bard-core pornography, justice Stewart once stated: "I shall not .. , attempt to define lit]. • But I know it when 1 see it." jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, j., concurring). 2 See Evening Magazine: Sports Illustrated's Swimsuit Issue (NBC television broadcast, Feb. 6, 1989). Evening Magazine reports that over two million copies of Sports Illustrated's swimsuit issue will be distributed. Id. See Coakley & Graham, Burden of the '80s: policing videos, Boston Globe, Sept, 1, 1988, at 31, col. 2 (parents and communities are concerned with the availability of pornographic videotapes). ' See Wyman, The trend in US: Is tolerance under siege?, Boston Globe, Feb. 27, 1989, at 12, col. 2 ("attempts to ban textbooks . and campaigns to suppress pornography by groups, including feminist organizations, arc picking up momentum"). 5 See ATTORNEY GENERAL'S COMMISSION ON PORNOGRAPHY, FINAL REPORT 450-52 (1986) thereinafter MEesE COMMISSION REPORT] (The Commission's report contains several "rec- ommendations" for action by private groups, including boycotts and publicity Campaigns.); Casenote, Taking Serious Value Seriously: Obscenity, Pope v. Illinois, and an Objective Standard, 41 U. MIAMI L. Riw. 855, 858 & n.27 (1987). For example, Playboy magazine reports that public pressure caused Iowa state-fair officials to remove two pieces of art work that contained nudity from the art exhibit. Porn Huskers, PLAYBOY, March 1988, at 40, In response to the inclusion of a photograph of a woman nude from the waist up in an article in the June, 1987 issue of Elle magazine, a wholesale distributor of the magazine wrote a letter to the publisher threatening to cease distributing Elle if it continued to include nudity. Naked Threats, PLAYBOY, March 1988, at 40. 823 824 BOSTON COLLEGE LAW REVIEW [Vol. 30:823 sexual acts." In response, state and federal administrations have focused increased attention and resources on the control of por- nography,' legislatures have enacted tougher statutes regulating obscenity8 and pornography,9 law enforcement agencies have in- 6 For example, feminist organizations have successfully sponsored legislation that bans pornography. See, e.g., INDIANAPOLIS, IND., CODE § 16 (1984). The Court of Appeals for the Seventh Circuit held this provision unconstitutional in American Booksellers v. Hudnut, 771 F.2d 323, 334 (7th Cir. 1985), summarily aff'd. 475 U.S. 1001 (1986). 7 See, e.g., MEESE COMMISSION REPORT, supra note 5; Playboy Enters. v. Meese, 639 F. Supp. 581, 583-88 (D.D.C. 1986), discussed in Casenote, supra note 5, at 857-58; Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 59-63 (1963). The Meese Commission's charter directed it to "make specific recommendations concerning more effective ways in which the spread of pornography could be contained." MEESE COMMISSION REPORT, supra note 5, at 215. The Meese Commission's report contains 92 recommendations for combating pornography. Id. at 433-764. Recommendations are provided for both legislative and police action, at both the federal and state levels; for example, "Recommendation 7: State legislatures should amend, if necessary, obscenity statutes containing the definitional requirement that material be 'utterly without redeeming social value' in order to be obscene to conform with the current standard enunciated by the United States Supreme Court in Miller v. California[, 413 U.S. • 15, 24 (1973)]." Id. at 491. "Recommendation 8: State legislatures should amend, if necessary, obscenity statutes to eliminate misdemeanor statutes for second offenses and make any second offense punishable as a felony." Id. at 495. In Playboy, the court permanently enjoined the Meese Commission from disseminating a "blacklist" of corporations engaged in the sale or distribution of pornography. 639 F. Supp. at 582; Casenote, supra note 5, at 858 & nn.28— 29 (citing Playboy, 639 F. Supp. at 588). One such corporation, after the receipt of a letter from the Meese Commission indicating it would be on a list of "identified distributors," halted sale of Playboy by its stores and implored the Meese Commission that "any reference to [the corporation] be deleted from [its] final report" Playboy, 639 F. Supp. at 583-84. The plaintiffs in Playboy further alleged that, in response to the letter and the threat of dissemination of the "blacklist," some stores "pulled magazines such as American Photographer, Cosmopolitan and Texas Monthly out of an abundance of caution." Id. at 584. Bantam Books involved the activities of the "Rhode Island Commission to Encourage Morality in Youth," created by the Rhode Island legislature to inform the public about publications containing "obscene, indecent, or impure language." 372 U.S. at 59. The Commission carried out its mandate by notifying distributors that it had reviewed certain books or magazines and concluded that they were objectionable for distribution to young readers. Id. at 61. The typical notification included a reminder of the Commission's duty to recommend for prosecution sellers of obscenity. Id. at 62. Distributors usually reacted by halting further distribution of the indicated publications. Id. at 63. Police officers "visited" distributors following delivery of the notices to determine what steps they had taken to comply with the Commission's "suggestions." Id. See, e.g., ILL. REV. STAT., ch. 38, paras. 11-20(b) (1985), discussed in Pope v. Illinois, 107 S. Ct. 1918, 1920 n.1, 1921 & n.4 (1987). Prior to 1985, the Illinois obscenity statute had been construed to incorporate the formulation of the tripartite test for obscenity originally set forth in Memoirs a. Massachusetts, discussed infra notes 116-28 and accompanying text. The Memoirs test required that material be "utterly without redeeming social value." 383 U.S. 413, 418 (1966) (plurality opinion). As revised, the statute employs the less stringent require- ment that the material merely "lack[] serious literary, artistic, political, or scientific value." Miller v. California, 413 U.S. 15, 24 (1973). For the text of the revised statute, see ILL. Ray. STAT., ch. 38, paras. I1-20(b) (1985). 9 See, e.g., INDIANAPOLIS, IND., CODE: § 16 (1984). This ordinance prohibited the produc- tion, sale, exhibition, or distribution of pornography. Id. Pornography was defined by the May 19891 OBSCENITY 825 creased enforcement activity,'" and prosecutors have increased the number of actions brought against distributors and producers of sexually oriented works." Those defending the right. to disseminate and view sexually oriented works have characterized their oppo- nent's efforts as invidious Moral censorship, unacceptable in a free society, and have vigorously defended, both in the public forum and in the courts, the right to continue publishing and exhibiting these works. 12 The legal aspects of the battle have focused primarily on the law of obscenity and the first amendment's guarantee of freedom of expression. Although the first amendment's prohibition against ordinance as "the graphic sexually explicit subordination of women." /d. 16-3(q). For a discussion or pornography statutes, see L. TRIBE, AMERICAN CONSTITUTIONAL LAW § 12.17, at 920-24 (2d ed. 1988). The term "pornography" has a variety of meanings. In its 'oust general sense, "pornog- raphy" refers to any material that is intended to arouse sexual desires. WEBSTER'S NLW TWENTIETI I CENTURY DICTIONARY, UNABRIDGED 1402 (2d ed. 1979). 0 ' Police agencies, because they are !Nall the most visible branch ()I' the government and the branch charged with actual enforcement of the laws, often play a rule in any governmental action whose intention is to suppress speech. See, e.g., Penthouse Ltd. v. McAuliffe, 610 F.2d 1353, 1357-62 (5th Cir. 1980); Bantam Books. 372 U.S. at 63. In Penthouse, the court found that via "a calculated scheme of warrantless arrests and harassitig, visits to retailers," McAuliffe, the Solicitor General or Fulton County, Georgia, had caused a number of 'nag- nines, including Playboy and Penthouse, to he removed from the shelves of every retail outlet. in the county, 610 F.2d at 1361. McAuliffe's enforcement. activities constituted a system of prior restraint and the "constructive seizure" of every explicit magazine in Fulton Comity. Id. at 1361, 1362. For a discussion of Bantam Books, see supra note 7. The government may bring a civil action seeking to have it work found or declared obscene as a preface to a criminal prosecution, or in the course of obtaining an injunction against distribution of the work.
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